Devils Films alleges that defendants sold illegal duplicate videos of
films that infringe upon and damage its business. See
Plaintiff's Second Amended Complaint. 610 Video denies that it sold any
illegal videos but alleges that, if it did, it unknowingly received them
from Yocko. See Affirmation in Support of Motion for Leave to
Serve Third-Party Summons and Complaint at 2 ("Def. Aff."). It asserts
that if it is held liable to Devils Films, it would have breach of
contract claims against Yocko, see Def. Aff. at 2 ("[i]f the
videos were, indeed, bootleg versions then Yocko breached a purchase and
sales agreement with 610 Video and/or misrepresented critical facts"),
and would be indemnified by it. Id. Devils Films opposes the
motion, countering that there exist no factual bases for 610 Video's
allegations and that adding Yocko would delay resolution of the case.
Declaration of Counsel in Opposition to 610 Video Defendants' Motion for
Leave to Serve Third Party Complaint at 1.

Federal Rule of Civil Procedure ("Rule") 14(a) permits a defending
party to implead a person not a party to the action who is or may be
liable to the defending party for any part of the plaintiff's claims. The
defending party must obtain leave on motion to implead a third party if
sought more than 10 days after serving the original answer, as in the
current case. FED. R. Civ. P. 14(a). The decision to permit a defending
party to implead a third-party defendant rests in the trial court's
discretion. Kenneth Leventhal & Co, v. Joyner Wholesale
Co., 736 F.2d 29, 31 (2d Cir. 1984). The underlying principle behind
impleader is to promote judicial efficiency by permitting the
adjudication of several claims in a single action, and thus to eliminate
"circuitous,
Page 3
duplicative actions." Shafarman v. Ryder Truck Rental
Inc., 100 F.R.D. 454,458-59 (S.D.N.Y. 1984); see also
Derv v. Wyer, 265 F.2d 804 (2d Cir. 1959). As a general
matter, "timely motions for leave to implead third parties should be
freely granted" . . . "unless to do so would prejudice the plaintiff,
unduly complicate the trial, or would foster an obviously unmeritorious
claim." Shafarman, 100 F.R.D. at 459. Relevant factors in
determining whether to grant leave to implead include: (i) whether the
movant deliberately delayed or was derelict in filing the motion; (ii)
whether impleading would unduly delay or complicate the trial; (iii)
whether impleading would prejudice the third-party defendant; and (iv)
whether the third-party complaint states a claim upon which relief can be
granted. Too, Inc. v. Kohl's Dep't Stores. Inc., et al.,
213 F.R.D. 138, 140 (S.D.N.Y. 2003).

As noted above, this case has recently been consolidated with three
others pending in this court. Impleading a party would add another layer
of complexity to this multi-party proceeding. The period for discovery is
not yet complete and the case is currently not scheduled for trial until
November 2004, however. Discovery regarding any agreement between 610
Video and Yocko should not be significant. In addition, the Court cannot
find on the submissions before it that 610 Video's proposed third-party
complaint is plainly without factual and legal merit. 610 Video's motion
seeking leave to serve a third-party summons and complaint is
GRANTED.

B. MOTION TO QUASH THE SUBPOENA OF AAA

Goonetilleke and Jayasuriya seek to quash a subpoena issued by Devils
Films to the AAA. Rule 45(c)(3) directs a court to quash a subpoena if,
among other factors, it "requires disclosure of privileged or other
protected matter" to which "no exception or waiver applies." It
Page 4
also allows a court to quash, modify, or condition a subpoena that
"requires disclosure of a trade secret or other confidential research,
development, or commercial information." FED. R. Civ. P. 45(c)(3)(B).
Goonetilleke and Jayasuriya state that the nonparty subpoena at issue
here calls for the production of documents from a private dispute that is
currently in arbitration between Goonetilleke and Jayasuriya regarding
ownership of one of the defendant corporations. See Defendants'
Memorandum of Law in Support of Motion to Quash Subpoena ("Def. Mem.") at
1. Though Goonetilleke and Jayasuriya claim that the information at issue
is "proprietary and confidential," they do not assert any privilege.
Id. at 2-3. They also concede that there will be no exposure of
trade secrets, and provide no evidence why a dispute about ownership of a
corporation would constitute confidential research, development, or
commercial information. Id. Thus, there is no compelling reason
to quash this subpoena.

Moreover, a party ordinarily lacks standing to quash a subpoena
directed at a nonparty unless the party is seeking to protect a personal
privilege or right. See Carrion v. City of New York, 2002 WL
523398, * 1 n. 1 (S.D.N.Y. Apr. 8, 2002); 9A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 2459 (2d ed.
1994). Because the subpoena allegedly touches upon their personal
financial affairs, Goonetilleke and Jayasuriya assert that they have
standing to quash this subpoena as an intrusion on a personal right. Def.
Mem. at 2-3. They cite cases where courts found standing to quash
subpoenas directed towards personal bank or brokerage accounts to argue
that, by analogy, their AAA arbitration should be treated as a
confidential personal financial affair. See, e.g., Sierra Rufile Ltd
v. Shimon Y. Katz, 1994 U.S. Dist. LEXIS 6188, *6-7 (S.D.N.Y. May
11, 1994)(parties had "sufficient privacy interest" in confidentiality
of personal bank and brokerage records to establish standing to challenge
Page 5
subpoenas); Chazin v. Lieberman, 129 F.R.D. 97, 98
(S.D.N.Y. 1990)(defendants had standing to object to subpoenas against
nonparty institutions, mainly banks, on personal privacy grounds). These
cases are inapposite since Goonetilleke and Jayasuriya have included no
evidence to show that their arbitration with the AAA was meant to be
private or confidential in any manner. Their motion to quash is
DENIED.

III. CONCLUSION

For these reasons, 610 Video's motion seeking leave to serve a
third-party summons and complaint is GRANTED, and Goonetilleke
and Jayasuriya's motion to quash a subpoena is DENIED. 610
Video's third-party summons and complaint must be served within ten days
of the date of this order. In addition, plaintiffs' application for an
extension of the discovery deadline to June 15, 2004, to which the
defendants do not object, is GRANTED.

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.